“it more concerns the Turk”*? - New reference to ECJ over Kurdish TV-Channel

Posted on February 25, 2010 | Filed Under digital content 

On 24 February 2010 the German Federal Administrative Court decided to refer questions concerning the Audiovisual Media Services Directive (AVMSD) to the European Court of Justice for a preliminary ruling. The German Federal Ministry of the Interior had banned the activities of two companies under Danish law, which provide - on the basis of a Danish licence - a TV programme mainly in the Kurdish language. The programme is distributed via satellite across Europe and to Turkey and the Middle East. The injunction was based on the German law on associations, and the reasons for the ban included that the broadcasting of the TV programme was directed against the idea of international understanding. The Ministry also stated that the station supported the armed struggle of the Kurdish Workers Party against the Turkish state. 

The Federal Administrative Court came to the conclusion that the injunction would be justified under national law. However, it is questionable whether the ban would be precluded by the AVMSD, which in its Article 3b provides that “Member States shall ensure … that audiovisual media services provided by media service providers under their jurisdiction o not contain any incitement to hatred based on race, sex, religion or nationality.”

Compliance with these Community [now: Union] minimum standards is enforced by the transmitting State (in this case, Denmark). The receiving State (Germany) must not exercise “secondary control” (see ECJ 9 July 1997, C-34/95, C-35/95, C-36/95, Konsumentombusmannen ao, para 34: “Thus the Directive does not in principle preclude application of national rules with the general aim of consumer protection provided that they do not involve secondary control of television broadcasts in addition to the control which the broadcasting Member State must carry out.)

The German Federal Administrative Court considered that the German Ministry of the Interior might have exercised such secondary control of a TV programme that was transmitted without any objections by the competent authorities of Denmark as the transmitting state.

As the decision of the Federal Administrative Court is not published yet, this blogpost is based on the Court’s press release (here, in German). I am pretty sure that the Court’s questions do not yet in fact concern the (revised) AVMSD, but are based still on the “Television Without Frontiers”-version of the directive. Even so, the relevant principles also apply to the new AVMSD. [update 26 May 2010: the case is C-245/10 Roj TV]

*) Shakespeare, Othello, Act I Scene 3

About this Post
author: hans peter | Permalink | | Print This Article |


Comments

Leave a Reply